Posted
by
Soulskill
on Friday August 20, 2010 @06:35PM
from the this-can-only-end-well dept.

An anonymous reader writes "With the somewhat disappointing Bilski ruling behind us, people concerned about overly broad patents should be looking at what's going on at the US Patent Office. Due to various other Supreme Court decisions and lots of bad publicity, the USPTO had gone on a 'quality binge' for a few years, rejecting a lot more patents than usual. However, with new leadership, it appears that the USPTO is back to its old tricks and approving a ton of patents (at an unheard of rate) in a misguided attempt to get through the 'backlog.' Get ready for another round of patent lawsuits on patents that never should have been granted."

Patent examiners aren't really allowed to reject on obviousness any way (there is no objective test for it in the end, the objective tests always basically come back to prior art... which is to say, they are not so much tests as lawyer created double speak which redefines the word obvious). The patent office was rejecting a lot of patents, but it wasn't about quality... it was either random or rejection based on technicalities. That kind of selectiveness just puts more money in the hands of patent attorne

Patents are a brake on society, theoretically justifiable by a corresponding benefit to a subset of society (the inventors).

Considering it's us who foots the bill in the end we should tally up how much patents cost us in higher prices, ditch patents to recover the cost, then tax that recovered money and distribute it to the creators of the most-helpful inventions. (Judged by use in devices multiplied by the number of devices sold, research enabled, etc)

The remedy for this is simple enough. If a patent is found invalid by a court and also should never have been granted according to the USPTO's own rules at that time, then require the federal government to pay the victor all legal expenses incurred + any time off work for court + any travel expenses for court, times three, within 30 days of the official ruling.

I also believe that anyone found "not guilty" in a criminal case, or who has charges dropped, should be compensated the same way.

That introduces an element of apoptosis into the self-appointing cancer.

the federal government to pay the victor all legal expenses incurred + any time off work for court + any travel expenses for court, times three, within 30 days of the official ruling.

Where does the federal government get the money to pay for this? Oh, that's right, the taxpayers. So, the taxpayers will be paying for the mistakes of a poor USPTO system. No, I think a better solution would instead be to fire the patent officer responsible for approving it and immediately invalidate every patent that that officer had previously approved (even "valid" ones, if such things exist).
I think after just a few of these, along with some big companies getting bitten hard by the suddenly invalidated

the federal government to pay the victor all legal expenses incurred + any time off work for court + any travel expenses for court, times three, within 30 days of the official ruling.

Where does the federal government get the money to pay for this? Oh, that's right, the taxpayers. So, the taxpayers will be paying for the mistakes of a poor USPTO system. No, I think a better solution would instead be to fire the patent officer responsible for approving it and immediately invalidate every patent that that officer had previously approved (even "valid" ones, if such things exist).
I think after just a few of these, along with some big companies getting bitten hard by the suddenly invalidated patents, would cause quality control to skyrocket.

I'm not against doing both though I'm not sure that'd be necessary. Our only difference is that I believe the government should repair any financial damage it causes to a citizen due to its incompetence. I believe that out of principle. If the principle is sound then a decent implementation of it can have a desirable effect. That means I can also give you a more pragmatic reason for my position.

Good legal representation is expensive. The corporations with deep pockets can already afford to litigate;

Where does the federal government get the money to pay for this? Oh, that's right, the taxpayers. So, the taxpayers will be paying for the mistakes of a poor USPTO system.

Who is ultimately the party that will have to raise some objections for anything to change? Oh, that's right, the taxpayers. Maybe if they noticed that the federal government was wasting their tax dollars because the USPTO can't say no to any absurd patent they'd demand that the system be fixed.

It's not a useless bureaucracy... sure it's corrupt, sure it actively slows down innovations and hurts consumers and society in general... it still benefits the US in it's current situation. Greater product innovation won't help the US one damn iota if everything is still produced abroad, at least now some of the huge trade deficit flows back in the form of licensing fees... not nearly enough of course, but it would be far worse without patents.

I mean, by common standards a corporate lawyer of the largest software patents client who becomes head of the USPTO, that simply smells corruption.

In the United States no one seems to care.

The patent system is anti-free trade, it should be abolished altogether, it is merely about useless bureaucracy.

They can't care about this. So few cared about a corporate executive from the world's second-largest oilfields services corporation becoming the USA's vice president, only to have this company benefit extensively from government contracts due to a war prosecuted by the same administration. Cheney giving a few "favors" to the company with which he was so thoroughly involved would be cronyism, a form of corruption. I'd say vice president is a higher office than head of USPTO. If they don't care much about

Whether Cheney was in office or not, that company would have seen the same benefits from the wars. Claiming that he steered benefits to them is a bit crazy as it has been pointed out time and time again that the infrastructure involved was already in place under different presidents including Clinton and Haliburton also carried the best bid once the bidding was opened.

You are being fooled by your own ignorance and will to remain under that spell.

The fact that multiple officials in high office had connections to this company prior to one of its executives becoming an official in high office only illustrates the revolving door that exists between well-connected large corporations and politicians. That doesn't contradict anything I've said. In fact it reinforces it.

This is exactly what Eisenhower warned us about when he talked about the advancement of the military-industrial complex. From this speech [h-net.org]:

They have been singing the same tune for 4-5 years anyway; Bilski was a distraction. It's won't go away, until someone significant gets burned badly; then it will be a big deal. Give it another 2-3 years.

Consumers and small innovators get burned badly already, but large corporations seeking government protection from competition have a "gentleman's" agreement (defensive portfolios and cross licensing) to not cause each other severe harm. Sometimes you see saber rattling like the Oracle/Google conflict, but that is just theater as they collude on how certain markets will be split between them.

I for one would like the oracle/google fight to become a complete bloodbath.

It stands a chance of highlighting the ridiculousness of the system as is, and failing that oracle needs to get slapped down by someone for their business practices. If they successfully take out google, IBM, samsung, etc etc will all be next. It makes sense for them to support google and attack oracle.

For once Mutually assured destruction would be lovely to see enact, especially if it's all against oracle.

Scary guy. Not so much evil as purely misguided in his efforts. He thinks that all those 700000 odd patents on backlog represent American jobs that aren't being created, because the patent doesn't exist. At that point, all I can think about is the high-tech patent wars, and how the only people they keep employed are lawyers. I guess, technically he is right: more patents mean more jobs. But only for patent lawyers and patent appraisers. Unfortunately, he didn't seem to get the distinction, and was incredibly enthusiastic about his drive to get more patents approved.

He thinks that all those 700000 odd patents on backlog represent American jobs that aren't being created

He doesn't believe that. But "jobs" is the new "terrorism", where if you want funding, you make your case using that as a starting point. The guy's a top-notch beaurocrat, who knows where his bread is buttered.

That's what I got out of the NPR interview. He wants to grow his department to get through the backlog of patent applications and trying to sell this growth to Congress and the public as job creation.It will create jobs for the new patent examiners he'll need to hire, but I'm not convinced it would do much beyond that.As I understand it, date of filing gives you the protection you need if you're confident your idea won't be rejected. No small business owner is going to submit a patent, then wait around three years before trying to bring it to market.

The U.S.A. cannot compete with 3rd world, Eastern European, and Asian labor rates for manufacturing anymore. Their GNP is closely related to Intellectual property which can easily be 'stolen' without strong intellectual property laws. Knockoff products and cloned trademarks are eating into American's livelihoods. Outsourced manufacturing of commodity products serves to teach foreign factory owners how to improve quality and target higher end goods and production methods. I support strong intellectual prop

Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.

That's flawed. 'I', as white board criminal, would file insane amounts of patents just to get them rejected. My 1o1 with the patent officer to split the profit would make me rich.Less worse case scenario is that the officer 'only' is black mail-able.

Just pay the patent examiners a bonus based on how many patents they successfully manage to reject, including any appeals that might be raised against the rejection by the original submitter. It'll incentivize the patent examiners to get through the backlog, and, if the bonuses are funded by an extra "patent examination fee" that is only refundable in the event of a succesful application, it'll cut down on the frivolous patent submissions at no extra cost to the taxpaper as well.

Most patent applications are rejected at least once already, often they're rejected twice.

Anyway, what you suggest would be a terrible approach. The result would be that examiners would reject everything, gamble that the applicant doesn't want to waste time and money on an appeal (or would lose anyway), and collect their bonus. And it's a good bet that a lot of applicants would simply let the application go rather than appeal: the Board of Patent Appeals and Interferences already has its own 20 month-and-growing backlog [patentlyo.com], and the cost of an appeal is typically thousands of dollars.

And the PTO isn't stupid. There are performance metrics in place that try to ensure that examiners aren't rubber stamping applications with either 'reject' or 'allow.'

Finally, the PTO doesn't cost taxpayers a dime. It's already fully funded by applicant fees, and in fact Congress often skims off excess fees. In total Congress has taken over $900 million that way. A bill was recently passed to give something like $120 million of that back to the PTO for the purpose of improving its IT systems and hiring more examiners.

You sound like it's a bad think. In fact, less "intellectual property" would do the US economy right now wonders. Look at the fashion industry, there you have none "intellectual property", no copyright, no patents, and they doing quite well. Johanna Blakley: Lessons from fashion's free culture [ted.com]

In particular, without knowing how many applications were rejected, we don't know whether the USPTO is approving a higher percentage of applications, or whether they have just increased up their processing rates.

And without knowing the number of patent examiners on staff over time, we don't know whether any increase in processing rates was caused by spending less time on each application (less scrutiny), whether they have hired more examiners, or whether they are using technology to process applications more efficiently.

Get all those facts, number of examiners, number of applications rejected, etc., and then you might be able to draw some conclusions.

Most patent stories on Slashdot are about silly patents, but raising standards will not solve our problem. Quality is just too hard to judge with something as abstract as software. A reduction of 50% wouldn't solve the fact that MPEG is covered by dozens of patents, and none of the people complaining about silly patents have proposed a way to raise the standards (not to reduce granting by 50%, and not even to reduce it by 1%). Now, we see that granting is still rising. We'll never get quality standards to catch up. The only way to win, and the only clean solution, is to simply cut software out of the list of things that can be patented.

That won't work. Not only is it wrong to abandon our fellow creators simply because we create executable math and they create physical devices, but that approach leaves us divided and vulnerable.

We need to band together to get rid of patents altogether. They're nothing more than corporate welfare. Like any welfare-mama, America's corporations sit back with their hands out, greedy for public money for something that isn't of value at all. We have patents because proponents have linked them to progress. We si

I've nothing against that suggestion. It would certainly achieve the aim of getting rid of our software patent problems. But, abolishing the whole system isn't my goal.

Software is different [swpat.org] in that it's an activity in which individuals and communities participate, and even when it's done within a company it's often done with a direct financial motive (the software can be a side effect of getting the real work done).

No, it isn't. You've still got an idea that you aren't allowed to use because someone came along earlier and stuck a flag in it, claiming it for themselves.

You think software advances more quickly, but you've never seen mechanical development unfettered by patents. You think it's more-often used for direct gain but you've obviously never seen a farmer machine their own trailer-hitch, or a company have its engineering department fix a defect in their trucks' loading ramps, etc.

You say that complete abolition is easier to explain than an arbitrary line in the sand, but I think that's contradicted by events in the last ten years.

Yes, easier to explain, and to morally justify. And easier to rally behind.

I was at a Iranian-vote rally a while back. The rally - shouting things like "remove Iranian dictator" and "help save the Iranian people" walked right past a bunch of Tamil having their own protest, saying almost the same things, and neither group batted an eye. Too caught up in their own experiences to see how they could team up with like-minded people around them and maybe get something done. And today the Iranian still have their

Such is the case with Kino International and Metropolis. With the recent restored version and amendment of previously lost footage, copyrights were apparently restored as well, despite the movie already having been of the public domain.

Why can't they just stop accepting patents from the people who would just continually "revise" their patents? Just give it a hard cap. Say 5 revisions to get it right and after that it gets "released" to public domain. Give the people something to worry about or they will waste your time. This has always been the case. If you let people get away with unlimited revisions to bury you in paperwork, then you can expect for it to happen.

This is the stuff that's actually pretty easy to reject. We're not going to find prior art on it, but we can generally make rejections for the application lacking an enabling disclosure (if the invention is ostensibly possible, as with flying cars), or we can reject it for a lack of credible utility (as with teleporters).

As for do-overs, yes, applicants can keep paying us to continue examining their applications. They get two bites at the apple each time (with some caveats attached if the examiner makes a bad rejection), and then they are stuck filing an RCE (which costs money but buys them another two bites), appealing to the Board of Patent Appeals and Interferences (which costs a lot of money, mostly to the attorney), or they can give up and let the application go abandoned.

There was a recent change in docketing procedure to examiners that prevents RCEs from "burying us in paperwork". It used to be that RCEs were docketed right along with regular amendments, and we had to work on every one of those within four biweeks of the date it was forwarded to the examiner. Now, it gets docketed on a separate queue, and we only have to pick up one RCE every month. When it comes to doing more work than that, we get to choose whether we'd rather do more first actions (new cases) or more RCEs. The Office is focusing on getting new applications in the pipeline, so we're being encouraged to do more first actions and let the RCEs sit there for a little while longer.

Yeah, we get software-related applications all the time, and usually, those applications are routed to people who examine that sort of thing nearly every day. We search them and reject them against the prior art the same as any other application. The requirements for patent eligibility under 35 USC 101 and the associated case law prevent the direct patenting of software, because software is not a method, machine, manufacture, or composition of matter. But there are ways to write the claims so that they'r

First, there's really little evidence that the rejection-equals-quality approach of the prior PTO leadership actually helped improve patent quality. Along those same lines, the higher acceptance rate is not the result of some edict to grant more frivolous or low quality patents. Instead, it's the result of re-aligning the performance metrics for examiners so as not to artificially promote rejections. Now, examiners are encouraged to work with applicants to find or draft allowable claims rather than fight

The increased issuance rate is probably the result of PTO's money crunch. Unlike most agencies, which supplement funds appropriate by Congress with collected fees, PTO is expected to be entirely self-supporting. Application fees. Continuation fees. Maintenance fees. Service fees. Everything that PTO does has a dollar sign attached to it (here's the fee schedule [uspto.gov]). Sometimes they don't even get to keep is all. Congress raided PTO's surplus several times during the boom to prop up the General Treasury.

The faster patents are approved, the faster their ridiculous nature will be exposed. Let there be so many patents that it becomes impossible for anyone to do anything. On that day corporations themselves will probably want an end to all the bullshit.

The patent office should do it like the insurance companies do it. Reject every single application on first submission. Find some detail that is just cause for rejecting it, and stamp a big red X through it.

The ones that come back modified with more details are the ones that get a serious review.

The patent office should do it like the insurance companies do it. Reject every single application on first submission. Find some detail that is just cause for rejecting it, and stamp a big red X through it.

They already do. It's termed a "non-final rejection" and occurs at least once for many applications. Sometimes the rejection is merely for non-compliance with some formality. However, it is often because the examiner found prior art which appears relevant. The applicant is thus required to provide a response, pointing out how it differs from the prior art, and possibly with amendments to the claims to delimit them appropriately.

Of my 15 granted US patents, I think only 3 or 4 went through without at least one non-final rejection. In a few cases, the examiner turned up quite relevant art and there was a significant revision needed for the claims. In a few others, the examiner had conflated different meanings of a particular word, and it was merely necessary to point out that my application used it in a very different sense to the art cited by the examiner (example: spectrum meaning a set of colors or wavelengths simultaneously present in a beam of radiance vs spectrum meaning frequency content over a finite time interval of a time series or signal). FWIW, my patents all involve hardware.

Of my 15 granted US patents, I think only 3 or 4 went through without at least one non-final rejection.

Looking at this from the other side, the first-action allowance rate is even lower than that. Probably much lower. Virtually every application has *something* wrong with it, and most of them get prior art rejections.

Examiners and attorneys both usually dislike first-action allowances in general. For examiners, it suggests that the search might have been incomplete, and rumors persist that first-action allowances are a red flag to our quality control people. For attorneys, it suggests that they weren't a

Clearly, the USPTO will never get rid of that 700000 backlog satisfactorily. Their archaic approach can never succeed. Software types just don't have the same tradition of publishing their ideas the way that other fields do. Therefore, they don't create the paper trail that patent examiners rely on to make their decisions.

The most promising solution to this problem I've heard is to make it a kind of wiki. Online users could contribute to the wiki evidence of prior art. In this case, crowd sourcing

The USPO is effetively executing a law, but is clearly not able to do so. So the US government should deny the USPO their license to execute that law. This is nothing new. This happened in the Netherlands, for example, with an organization that oversaw the small private aircraft manufacturing.
US patent law is already the joke of the day world-wide, and it is long past due to start doing something about it. But that should be done.

I think the most humorous thing here is the number of people who comment on the operations of the USPTO, yet have no clue as to how the office is run, how the examiner's do their jobs, the metrics and constraints they are under, and the other issues that affect the quality and speed at which a patent is granted. It is not all Kappos, or the examiners, or the managers...but in part a system set up over many years that is a lot more intricate than one realizes, where actions are governed by laws created by co

We spent over a million dollars defending ourselves against a patent whose claims were so ridiculous we didn't even take it seriously. The problem was the patent troll got the patents through, then signed up 15 companies who were only peripherally involved with our space. With the 15 contracts in hand the troll came after us and another major player in our space. Total spent on prosecution and defense was over $7M, and all the claims were ultimately found to be obvious or prior art at a jury trial.

As one who does have a patent to his name, I have thought about this entire patent issue quite a bit.

The original intent of the patent was to give the lone inventor a monopoly over his invention in order to spur innovation. And it may have served that purpose once. But today, patents have taken on a completely different use -- the leverage for big deep-pocket corporations to beat up on other corporations and obliterate any possible competition from "the little guy", who could not possibly afford patent litigation.

So, it is my view that patents no longer serve it original intended purpose, and thus should be eliminated. Monsanto patents organisms and genes and uses that to force small farmers to buy their GMO seeds; Microsoft may use patents to beat down startups they deem as a threat, and so on.

Today, people will innovate whether or not patents exist. And most innovations don't ever see a patent, I think. It's just too expensive to procure a patent -- $5,000 to $10,000 -- and if ever someone -- even another little guy -- violated your patent "rights", you could not afford the litigation, anyway.